Murton v TD Preece and Co. Pty Ltd [2006] NSWIRComm 367

Murton v TD Preece and Co. Pty Ltd [2006] NSWIRComm 367

The applicant personally performed the work of financial controller, was the sole director of Windjar Pty Ltd, and operated under an arrangement involving himself, Windjar and the respondent; he was therefore a party to a contract in the extended sense for the purposes of s 108 and entitled to commence proceedings...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 November 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Contract declared unfair; contract varied to require payment of two months remuneration on termination except for serious misconduct; respondent ordered to pay $13,330 plus interest; costs reserved for directions.
Legal Topics
['unfair Contract Under S 106 of the Industrial Relations Act 1996' 'standing Under S 108 of the Industrial Relations Act 1996' "contracting Party and Arrangement Involving Worker's Company" 'summary Termination Without Notice' 'reasonable Notice and Payment in Lieu of Notice']
['industrial Law' 'unfair Contracts' 'employment Law'] ['unfair Contract Under S 106 of the Industrial Relations Act 1996' 'standing Under S 108 of the Industrial Relations Act 1996' "contracting Party and Arrangement Involving Worker's Company" 'summary Termination Without Notice' 'reasonable Notice and Payment in Lieu of Notice']

Source-derived case record

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant was a contracting party entitled to bring proceedings under s 106, having regard to s 108 of the Industrial Relations Act 1996, where payments were invoiced through Windjar Pty Ltd.' 'Whether the contract or arrangement under which the applicant performed work for the respondent was unfair.' 'Whether the alleged failure to provide for superannuation contributions rendered the contract unfair.' "Whether the circumstances of the applicant's summary termination without notice rendered the contract unfair." 'What monetary relief should be ordered if the contract was unfair.']

Ratio Decidendi

The applicant personally performed the work of financial controller, was the sole director of Windjar Pty Ltd, and operated under an arrangement involving himself, Windjar and the respondent; he was therefore a party to a contract in the extended sense for the purposes of s 108 and entitled to commence proceedings under s 106. The contract was not unfair for failure to provide superannuation because the salary package was inclusive of superannuation and no contrary entitlement was established. However, the contract operated unfairly because the applicant was summarily terminated without notice, without payment in lieu of notice, in the absence of substantiated misconduct or poor...

Court Disposition

Contract declared unfair; contract varied to require payment of two months remuneration on termination except for serious misconduct; respondent ordered to pay $13,330 plus interest; costs reserved for directions.

Orders

  • ['The contract entered into between the applicant and the respondent under which the applicant commenced work for the respondent on 4 February 2002 is declared unfair.' 'The contract referred to in Order 1 above is varied from its inception to include a term that the contract shall not be terminated without the...